[Federal Register Volume 71, Number 53 (Monday, March 20, 2006)]
[Rules and Regulations]
[Pages 13926-13934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2623]


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FEDERAL ELECTION COMMISSION

11 CFR Part 300

[Notice 2006-6]


Definitions of ``Solicit'' and ``Direct''

AGENCY: Federal Election Commission.

ACTION: Final rules and transmittal of rules to Congress.

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SUMMARY: The Federal Election Commission is revising its definitions of 
the terms ``to solicit'' and ``to direct'' for its regulations on 
raising and spending Federal and non-Federal funds. The new definition 
of ``to solicit'' encompasses written and oral communications that, 
construed as reasonably understood in the context in which they are 
made, contain a clear message asking, requesting, or recommending, 
explicitly or implicitly, that another person make a contribution, 
donation, transfer of funds, or otherwise provide something of value. 
Mere statements of political support and mere guidance as to the 
application of the law are not included. The revised definition also 
contains a list of examples, to provide practical guidance to Federal 
candidates, officeholders, political committee officials, and others. 
The new definition of ``to direct'' focuses on guidance provided 
directly or indirectly to a person who has expressed an intent to make 
a contribution, donation, or transfer of funds. Further information is 
provided in the supplementary information that follows.

DATES: The revised rules at 11 CFR 300.2(m) and (n) are effective on 
April 19, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Brad C. Deutsch, Assistant General 
Counsel, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Pub. L. 107-155, 116 Stat. 81 (2002), amended the Federal 
Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (the 
``Act''), by adding to the Act new restrictions and prohibitions on the 
solicitation, receipt, and use of certain types of non-Federal funds 
(i.e., funds that do not comply with the amount limits, source 
prohibitions, and reporting requirements of the Act),\1\ which are 
commonly referred to as ``soft money.''
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    \1\ See 11 CFR 300.2(k).
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    The terms ``to solicit'' and ``to direct'' are central to three 
core provisions of

[[Page 13927]]

BCRA. First, national parties ``may not solicit * * * or direct'' non-
Federal funds. 2 U.S.C. 441i(a)(1). Second, national, State, district, 
and local party committees may not solicit any non-Federal funds or 
direct any donations to certain entities organized under chapter 501(c) 
or 527 of the Internal Revenue Code. 2 U.S.C. 441i(d); 11 CFR 300.11 
and 300.37. Third, Federal candidates and officeholders ``shall not * * 
* solicit'' or ``direct'' funds in connection with any election unless 
the funds comply with the Act's contribution limits and prohibitions. 2 
U.S.C. 441i(e)(1)(A) and (B); see also 2 U.S.C. 441i(e)(2)-(4). In 
addition, BCRA added prohibitions on soliciting contributions or 
donations from foreign nationals and on fraudulent solicitations. 2 
U.S.C. 441e(a)(2) and 441h(b). Neither BCRA nor FECA contains a 
definition of either ``to solicit'' or ``to direct.''
    On July 29, 2002, the Commission promulgated regulations 
implementing BCRA's new limits on raising and spending non-Federal 
funds by party committees, and Federal candidates and officeholders. 
Final Rules and Explanation and Justification for Prohibited and 
Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064 
(July 29, 2002) (``Soft Money Final Rules''). The 2002 rules defined 
``to solicit'' as ``to ask that another person make a contribution, 
donation, transfer of funds, or otherwise provide anything of value, 
whether the contribution, donation, transfer of funds, or thing of 
value, is to be made or provided directly, or through a conduit or 
intermediary.'' 11 CFR 300.2(m) (2002). The 2002 rules defined ``to 
direct'' as ``to ask a person who has expressed an intent to make a 
contribution, donation, or transfer of funds, or to provide anything of 
value, to make that contribution, donation, or transfer of funds, or to 
provide that thing of value, including through a conduit or 
intermediary.'' 11 CFR 300.2(n)(2002).
    In Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (``Shays 
District''), aff'd, Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (``Shays 
Appeal''), reh'g en banc denied (Oct. 21, 2005), the District Court 
held that the Commission's definitions of ``to solicit'' and ``to 
direct'' did not survive the second step of Chevron review.\2\ Shays 
District at 77, 79. The Court of Appeals for the D.C. Circuit affirmed 
the District Court's decision on slightly different grounds, holding 
that the Commission's definitions of ``to solicit'' and ``to direct'' 
did not survive the first step of Chevron review. Shays Appeal at 105-
07.
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    \2\ The first step of the Chevron analysis, which courts use to 
review an agency's regulations, asks whether Congress has directly 
spoken to the precise questions at issue. The second step considers 
whether the agency's resolution of an issue not addressed in the 
statute is based on a permissible construction of the statute. See 
Shays District at 51-52 (citing Chevron, U.S.A., Inc. v. Natural 
Res. Def. Council, 467 U.S. 837, 842-43 (1984).)
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    The Court of Appeals found that the Commission's definition of ``to 
solicit'' was limited to explicit, direct requests for money and, 
consequently, left ``unregulated a `wide array of activity' * * * that 
the term `solicit' could plausibly cover.'' Id. at 104. Specifically, 
the Court of Appeals determined that the Commission's definition 
excluded implicit requests for money, impermissibly required that a 
candidate or officeholder use certain ``magic words'' to satisfy the 
definition, and did not allow for any consideration of the non-verbal 
actions accompanying a communication or any other aspect of the context 
in which the communication was made. Id. at 104-106.
    As to the term ``to direct,'' the District Court held that the 
Commission's definition was not a permissible construction of the 
statute because the Commission's definition of ``to direct'' did not 
comport with any dictionary definition of the term and was subsumed 
within the definition of ``to solicit.'' Shays District at 76 and 77. 
Subsequently, the Court of Appeals held that the Commission's 
definition of ``to direct'' was invalid because it effectively defined 
``to direct'' as ``to ask'' (namely, to ask someone who has expressed 
an intent to make a contribution or donation) and thus, like the 
definition of ``to solicit'' and contrary to Congress's intent, limited 
``to direct'' to explicit requests for funds. The Court of Appeals did 
not reach the question of whether ``to avoid statutory redundancy, 
`direct' must mean more than `ask in response,' when `solicit' means 
`ask' plain and simple.'' Shays Appeal at 107.
    The Court of Appeals affirmed the District Court's order that had 
remanded both definitions to the Commission for further action 
consistent with its opinion. Id.
    In response to the Court of Appeals' decision, the Commission 
published a Notice of Proposed Rulemaking (``NPRM'') on September 28, 
2005 in which it sought comment on a number of different ways in which 
the definitions of ``to solicit'' and ``to direct'' could be amended, 
which are discussed below. 70 FR 56599 (September 28, 2005). The 
comment period closed on October 28, 2005. The Commission received 
written comments from twelve commenters.\3\ The Commission held a 
public hearing on November 15, 2005, at which seven witnesses 
testified. The comments and a transcript of the public hearing are 
available at http://www.fec.gov/law/law_rulemakings.shtml#def_solicit.\4\
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    \3\ These included a comment from the Internal Revenue Service 
stating that ``the proposed rules do not pose a conflict with the 
Internal Revenue Code or the regulations thereunder.''
    \4\ For purposes of this document, the terms ``comment'' and 
``commenter'' apply to both written comments and oral testimony at 
the public hearing.
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    While the Commission believes its regulations have been construed 
more narrowly than intended, it is issuing final rules adopting a 
revised definition of ``to solicit'' that (1) encompasses both explicit 
and implicit written or oral communications that contain clear messages 
asking, requesting, or recommending that funds or anything of value be 
provided, (2) provides an objective test that requires that written or 
oral communications be reasonably construed in the context in which 
they are made, and (3) does not rely on any ``magic words'' or specific 
statements. The Commission is also adopting a revised definition of 
``to direct'' that distinguishes between ``to solicit'' and ``to 
direct'' by defining the latter as ``to guide.'' These new definitions 
further the purpose of BCRA in preventing corruption or the appearance 
of corruption and they provide guidance that is designed to address the 
practical, real-life situations that Federal candidates, officeholders, 
and others face on a daily basis.
    Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the 
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), 
agencies must submit final rules to the Speaker of the House of 
Representatives and the President of the Senate and publish them in the 
Federal Register at least 30 calendar days before they take effect. The 
final rules that follow were transmitted to Congress on March 14, 2006.

Explanation and Justification

I. 11 CFR 300.2(m)--Definition of ``To Solicit''

A. The Revised Definition

    The Commission is revising 11 CFR 300.2(m) by providing a modified 
version of the rule proposed in the NPRM.\5\ By using the phrase ``ask,

[[Page 13928]]

request, or recommend, explicitly or implicitly,'' the revised 
definition of ``to solicit'' is properly broad in scope to prevent 
corruption or the appearance of corruption. 11 CFR 300.2(m). At the 
same time, the definition sets forth an objective test that focuses on 
the communications in context, and does not turn on subjective 
interpretations by the person making the communication or its 
recipient. Specifically, the definition provides:
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    \5\ In the NPRM, the Commission proposed defining ``to solicit'' 
as ``to ask, suggest, or recommend that another person make a 
contribution, donation, transfer of funds, or otherwise provide 
anything of value, whether it is to be made or provided directly or 
through a conduit or intermediary. A solicitation is a written or 
oral communication, whether explicit or implicit, construed as a 
reasonable person would understand it in context.'' The NPRM also 
sought comment on five additional alternatives for defining ``to 
solicit.''

    [T]o solicit means to ask, request, or recommend, explicitly or 
implicitly, that another person make a contribution, donation, 
transfer of funds, or otherwise provide anything of value. A 
solicitation is an oral or written communication that, construed as 
reasonably understood in the context in which it is made, contains a 
clear message asking, requesting, or recommending that another 
person make a contribution, donation, transfer of funds, or 
otherwise provide anything of value. A solicitation may be made 
directly or indirectly. The context includes the conduct of persons 
involved in the communication. A solicitation does not include mere 
statements of political support or mere guidance as to the 
applicability of a particular law or regulation.
    (1) By including the phrases ``ask, request, or recommend, 
explicitly or implicitly'' and ``directly or indirectly,'' the 
revised definition of ``to solicit'' furthers the purposes of BCRA 
by covering not only communications that explicitly or directly 
request contributions or donations, but also communications that 
implicitly or indirectly seek to elicit a contribution or donation

    The Commission is including the phrases ``explicitly or 
implicitly'' and ``directly or indirectly'' in the revised definition 
of ``to solicit'' to clarify that the definition of ``to solicit'' 
covers not only communications that explicitly or directly request 
contributions or donations, but also communications that implicitly or 
indirectly seek to elicit a contribution or donation, and does not 
depend on the use of certain ``magic words.''
    Importantly, the revised definition implements and reinforces 
BCRA's direct prohibitions on soliciting or directing non-Federal 
funds. The revised definition ensures that candidates and parties may 
not, implicitly or indirectly, raise unregulated funds for either 
themselves or, subject to statutory exceptions, ``friendly outsiders.'' 
See Shays Appeal at 106. By covering implicit and indirect requests and 
recommendations, the new definition forecloses parties and candidates 
from using circumlocutions ``that make their intention clear without 
overtly `asking' for money.'' Id. The revised definition of ``to 
solicit'' also squarely addresses the central concern of the Court of 
Appeals in Shays that ``indirect'' as well as ``direct'' requests for 
funds or anything of value must be covered. See Shays Appeal at 105. 
The changes to the definition also ensure that it encompasses 
communications such as the following, which were cited by the Court of 
Appeals: (1) ``It's important for our State party to receive at least 
$100,000 from each of you in this election'' and (2) ``X is an 
effective State party organization; it needs to get as many $100,000 
contributions as possible.'' Shays Appeal at 103.
    One group of commenters urged the Commission to adopt the language 
proposed in the NPRM, which defined ``to solicit'' as ``to ask, 
suggest, or recommend'' that another person provide funds. Other 
commenters, however, opposed the inclusion of this phrase because of 
its potential to encompass words or actions that do not convey a clear 
message asking, requesting, or recommending that funds or other things 
of value be provided. The Commission is not including ``to suggest.'' 
The word ``suggest'' is unnecessary because the revised definition 
already covers ``implicit'' statements. The Commission also concludes 
that including ``suggest'' could contribute to vagueness rather than 
clarifying the statutory restriction. The term ``suggest'' is generally 
defined to include meanings that imply a concrete proposal for action, 
but also to include a mental process of association. The American 
Heritage College Dictionary 1358 (3d ed. 1997). The former constitutes 
a solicitation, but the latter definition, encompassing a largely or 
wholly subjective process, does not. Including a term which has a range 
of meanings, some of which are intended to be encompassed within the 
regulatory definition of ``solicit'' but others of which necessarily 
are excluded, is unhelpful in defining and explaining the reach of the 
solicitation prohibition. Although the revised definition does not 
include ``to suggest,'' the Commission notes that a statement such as 
``I suggest that you give $30,000'' would nonetheless be an implicit 
request for funds covered by the definition.

    (2) A solicitation is a communication that, construed as 
reasonably understood in the context in which it is made, contains a 
clear message asking, requesting, or recommending that another 
person provide funds or something of value, and a solicitation does 
not encompass mere statements of political support or mere guidance 
about a particular law

    Federal candidates and officeholders, as a natural consequence of 
campaigning or carrying out their official duties, are continuously 
involved in meeting and greeting voters and potential donors and 
promoting legislative agendas. The sheer number of interactions and 
similarity in the messages for these different purposes may sometimes 
give rise to situations where a candidate's request for electoral or 
legislative support is misconstrued as a request for financial support. 
See Thomas v. Collins, 323 U.S. 516, 534-35 (1945) (``[g]eneral words 
create different and often particular impressions on different minds. 
No speaker, however careful, can convey exactly his meaning, or the 
same meaning, to the different members of an audience * * * [I]t 
blankets with uncertainty whatever may be said. It compels the speaker 
to hedge and trim''). For example, Federal candidates and officeholders 
routinely thank attendees for their support at campaign rallies and 
other events. Absent a requirement that a communication contains a 
clear message asking, requesting, or recommending that another person 
provide funds or something of value, such a statement might be 
inappropriately captured by the definition of ``to solicit.''
    In addition, the revised definition of ``to solicit'' in 11 CFR 
300.2(m) covers only those communications that ask, request or 
recommend that a contribution or donation be provided, and does not 
cover mere statements of political support or mere statements seeking 
political support, such as a request to vote for, or volunteer on 
behalf of, a candidate. As noted above, the solicitation can be made 
``explicitly or implicitly,'' or ``directly or indirectly,'' so the 
definition unequivocally extends beyond overt requests for money or in-
kind contributions.
    Moreover, the Commission emphasizes that the definition of ``to 
solicit'' is not tied in any way to a candidate's use of particular 
``magic words'' or specific phrases. The revised definition merely 
requires that whatever communication is used must contain a clear 
message asking, requesting, or recommending that another person make a 
contribution, donation, transfer of funds, or otherwise provide 
anything of value. See Shays Appeal at 106 (regulations must encompass 
a communication that ``makes [a candidate's or political party's] 
intention clear without overtly `asking'

[[Page 13929]]

for money * * * if imaginative advertisers are able to make their 
meaning clear without employing express terms like `vote for' and `vote 
against,' savvy politicians will surely be able to convey fundraising 
desires without explicitly asking for money.'') (emphasis added).
    For example, at a ticket-wide rally, the candidate says: ``It is 
critical that we support the entire Democratic ticket in November.'' 
Such a statement would not, by itself, constitute a solicitation 
because the statement is reasonably interpreted as an appeal for 
continuing political, rather than financial, support. See 11 CFR 
300.2(m)(3)(v). On the other hand, a solicitation would result where a 
candidate states, ``I will be very pleased if we can count on you for 
$10,000.'' 11 CFR 300.2(m)(2)(xii). Although implicit, the solicitation 
of funds is nevertheless clear.

    (3) By specifying that a communication must be construed as 
reasonably understood in the context in which it is made, the 
definition of ``to solicit'' contains an objective test that takes 
into account all appropriate information and circumstances while 
avoiding subjective interpretations

    The revised definition retains the requirement that a communication 
must contain some affirmative verbalization, whether oral or in 
writing, to be a solicitation. In addition, the Commission believes 
that it is necessary to reasonably construe the communication in 
context, rather than hinging the application of the law on subjective 
interpretations of the Federal candidate's or officeholder's 
communications or on the varied understandings of the listener. The 
revised definition reflects the need to account for the context of the 
communication and the necessity of doing so through an objective test. 
See 11 CFR 300.2(m).
    The context of a communication is often important because words 
that would not, by their literal meaning, convey a solicitation, may in 
some contexts be reasonably understood as one. Conversely, words that 
would by their plain meaning normally be understood as a solicitation, 
may not be a solicitation when considered in context, such as when the 
words are used as part of a joke or parody. The following example 
illustrates the importance of the context in which a communication is 
conveyed: Fundraiser introduces Donor to Senator, saying: ``Senator, 
I'd like you to meet Joe Donor. Joe's been a longtime supporter of X 
Organization.'' Senator: ``Joe, it's great to meet you. I really 
appreciate your support of X Organization's fine work.'' At this point, 
the Senator has merely expressed political support for X Organization; 
he has not made a solicitation. Fundraiser continues: ``I've been 
trying to persuade Joe to commit to giving X another $50,000. Wouldn't 
that be great, Senator?'' The Senator replies: ``Joe, X is a very 
worthy organization. It's always been very helpful to me.'' In the 
context of the entire conversation, and particularly, the Fundraiser's 
last statement and question, the Senator's response now constitutes a 
solicitation.
    Despite the potential for differing interpretations of candidate 
communications, the Act imposes stiff penalties, including potential 
criminal liability, on a Federal candidate or officeholder who is found 
to knowingly and willfully violate the prohibition on the solicitation 
of non-Federal funds. 2 U.S.C. 437g(d) and 441i(e). Moreover, as one 
commenter warned, complaints are often filed for purely partisan 
political reasons, so it is likely that all public appearances would be 
dissected by opponents or interest groups to find a few phrases or 
words that could be perceived as suggesting that members of the 
audience make a contribution or donation; this, in turn, would form the 
basis for filing a complaint with the Commission. To address these 
concerns, the Commission has historically sought to develop clear 
standards that provide adequate notice of whether communications 
constitute solicitations; anything less would place Federal candidates, 
officeholders, and party officials at the mercy of the various 
understandings of third parties. Accordingly, for a solicitation to be 
made under revised 11 CFR 300.2(m), the communication must be 
``construed as reasonably understood in the context in which it is 
made.'' The mere fact that the recipient of a communication 
subjectively believes that he or she has been solicited is not a 
sufficient basis for finding that a solicitation has taken place. See, 
e.g., Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 
727 (1st Cir. 1992) (``For example, a theater critic who wrote that, 
``The producer who decided to charge admission for that show is 
committing highway robbery,'' would be immune from liability because no 
reasonable listener would understand the speaker to be accusing the 
producer of the actual crime of robbery.'') Rather, under revised 11 
CFR 300.2(m), the Commission's objective standard hinges on whether the 
recipient should have reasonably understood that a solicitation was 
made. This will allow Federal candidates and officeholders and 
political party officials to determine with reasonable certainty 
whether a communication is a solicitation.
    The conduct of the speaker or other persons involved in a 
communication may also be relevant to the meaning of a written or oral 
communication in certain situations. For example, the following 
exchange would result in a solicitation by the candidate: ``The head of 
Group X solicits a contribution from a potential donor in the presence 
of a candidate. The donor asks the candidate if the contribution to 
Group X would be a good idea and would help the candidate's campaign. 
The candidate nods affirmatively.'' See 11 CFR 300.2(m)(2)(xvi). 
Therefore, revised 11 CFR 300.2(m) expressly provides that the context 
of a written or oral communication ``includes the conduct of persons 
involved in the communication.''
    In the NPRM, the proposed definition of ``to solicit'' also 
included an objective standard: the communication was to be construed 
``as a reasonable person would understand it in context.'' 70 FR at 
56606. All of the commenters agreed that an objective standard was 
appropriate. Some of the commenters disagreed over the particular 
language of the standard, but one commenter accurately observed that 
the debate over the language of the objective standard was ``a little 
bit of a kind of false dilemma, because * * * inevitably the Commission 
is going to construe its regulations by a reasonable understanding of 
what the words mean * * * whether you put it in the rule or not, I 
think that's essentially the only sensible way to go about it.''

    (4) Because it focuses on the delivery of contributions or 
donations, rather than how a solicitation is made, the 2002 language 
relating to the provision of funds or things of value through 
conduits or intermediaries is superfluous

    The 2002 definition of ``to solicit'' stated that a solicitation 
would result where ``the contribution, donation, transfer of funds, or 
thing of value is to be made or provided directly, or through a conduit 
or intermediary.'' See 11 CFR 300.2(m) (2002). This statement focuses 
on the delivery of the funds or thing of value after the solicitation 
has taken place, as opposed to how a solicitation is made. The 
Commission has decided to remove that language because it is 
unnecessary. It is true that a Federal candidate, officeholder, or 
other person would make a solicitation by asking, requesting, or 
recommending that funds be provided to himself or herself or to another 
entity, regardless of whether the funds are ultimately delivered 
directly through a conduit or

[[Page 13930]]

intermediary or some other method. However, the delivery of funds is 
already addressed through other provisions in the Act and Commission 
regulations, such as the Commission's earmarking rules at 11 CFR 110.6 
implementing 2 U.S.C. 441a(a)(8).

B. Other Alternatives Proposed in the NPRM

    In the NPRM, the Commission sought comment on five alternatives for 
defining ``to solicit'' in addition to the proposed rule. Of these five 
alternatives, the only one that received any support from commenters 
was Alternative Three, which was to retain the 2002 definition of ``to 
solicit'' while revising the Explanation and Justification to explain 
that ``to solicit'' includes implied or indirect requests for funds. 
Commenters who supported Alternative Three did so primarily on three 
grounds. First, notwithstanding the Court of Appeals' interpretation of 
the Commission's 2002 definition of ``to solicit,'' some of those 
seeking to comply with the Commission's solicitation rules had 
understood that definition to cover not only express, but also implied 
or indirect requests for funds. Second, retaining the 2002 rule would 
create the least instability and avoid the uncertainty associated with 
the introduction of new terms. Lastly, a revised Explanation and 
Justification would provide notice that this definition will be 
interpreted in accordance with the Shays decisions. However, other 
commenters opposed retaining the 2002 definition of ``to solicit'' 
because the rule would continue to be construed to be overly narrow and 
therefore would not comply with the Shays decisions, even if explained 
differently.
    Although the Commission agrees with the commenters that the 2002 
definition of ``to solicit'' was broader than the Court of Appeals 
understood it to be, the Commission has decided not to retain the 2002 
definition because, given the fact that both the District Court and the 
Court of Appeals construed the 2002 definition to be narrow, there is a 
significant lack of certainty regarding the scope of that definition. 
Thus, the most straightforward and effective way of removing ambiguity 
and providing the necessary guidance to those subject to BCRA is to 
clarify the scope of the definition of ``to solicit'' in the regulation 
itself. Moreover, because the Court of Appeals in Shays Appeal struck 
down the 2002 definition under the first step of Chevron,\6\ the court 
might find that retaining that definition of ``to solicit'' as ``to 
ask,'' even with a revised Explanation and Justification, is not fully 
responsive to the court's ruling.
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    \6\ See note 2, above.
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    Regarding the other alternatives, none of which received any 
support from commenters, Alternative One would have modified the 
revised definition of ``to solicit'' proposed in the NPRM by excluding 
the requirement that a communication be construed objectively in the 
context in which it is made. As explained above, the Commission 
believes it is important to specify in the definition of ``to solicit'' 
that a communication must be ``construed reasonably in the context in 
which it is made'' in order to make clear that the determination of 
whether a communication is a solicitation is an objective test and does 
not turn on subjective interpretations of the communication.
    Alternative Two would have modified the 2002 definition to make 
clear in the regulation itself that ``to solicit'' covers not only 
explicit requests or communications that use certain ``magic words'' 
but also indirect, implied requests for contributions or donations. 
This alternative would have provided that ``to solicit means to ask, 
explicitly or implicitly, that another person make a contribution, 
donation, transfer of funds, or otherwise provide anything of value.'' 
Alternative Two did not include the words ``request'' or ``recommend'' 
or the requirement that the communication be construed objectively and 
in context. The Commission did not choose this alternative for two 
reasons. First, inclusion of the words ``request'' and ``recommend'' 
are more effective in putting those subject to BCRA's restrictions on 
notice that indirect requests for funds are covered by the revised 
definition of ``to solicit.'' Second, incorporation of the requirement 
that the communication be construed objectively and in context is 
important for the reasons discussed above.
    Alternative Four was premised on the Commission prevailing on a 
rehearing by the full Court of Appeals. Alternative Four would have 
adopted a definition that limits solicitations to explicit requests for 
contributions or donations. Because the Commission's petition for a 
rehearing en banc was denied, this alternative is no longer viable.
    Alternative Five was to provide no definition of ``to solicit'' in 
the rules. Under this alternative, those seeking guidance would have 
had to rely on the Court of Appeals decision, previous advisory 
opinions, and future applications by the courts and the Commission. 
Although one commenter indicated that this alternative would not be 
inconsistent with the Court of Appeals decision, another commenter 
asserted that a case-by-case approach would not provide adequate notice 
and guidance in this area. The Commission believes that defining the 
term ``to solicit'' is the most straightforward and effective way of 
providing guidance.

C. Disclaimer Requirements for Attendance and Participation at 
Fundraising Events

    In the NPRM, the Commission sought comment regarding Advisory 
Opinions 2003-03 (Rep. Eric Cantor), 2003-05 (National Association of 
Home Builders), and 2003-36 (Republican Governors Association). These 
advisory opinions permitted Federal candidates or officeholders to 
attend and participate in a fundraising event for non-Federal funds 
held by State and local candidates, or by non-Federal political 
organizations, so long as the solicitations made by the Federal 
candidate or officeholder included, or were accompanied by, certain 
disclaimers.\7\
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    \7\ This analysis has not been applied to appearances and 
speeches by Federal candidates and officeholders at State, district, 
or local party fundraising events because the Act and Commission 
regualtions allow those individuals to attend and speak at such 
events without restriction or regulation. 2 U.S.C. 441i(e)(3); 11 
CFR 300.64.
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    The Commission sought comment on whether the principles enunciated 
in these advisory opinions should be incorporated into the Commission's 
regulations or should be superseded. All of the commenters who 
addressed the application of the disclaimer requirements, as 
articulated in the advisory opinions, agreed that Federal candidates 
and officeholders should be permitted to attend and participate in 
these non-Federal fundraising events, subject to the disclaimer 
guidelines. One commenter favorably characterized the disclaimers as a 
``safe harbor'' enabling Federal candidates to participate and speak at 
such events ``in a way that complies with the statute.'' Another 
commenter warned that superseding the advisory opinions would ``chill'' 
the activities of Federal candidates and officeholders at the State and 
local, or ``grassroots,'' level.
    Some commenters urged the Commission to incorporate the disclaimers 
into regulations and observed that the advisory opinions provided 
detailed guidance ``without having caused any known abuse or 
confusion.''
    The incorporation of the disclaimer requirements into a rule 
applicable to non-party committee fundraisers was

[[Page 13931]]

first addressed in the rulemaking on Federal candidate solicitations at 
party fundraising events. See Revised Explanation and Justification for 
Final Rules on Candidate Solicitation at State, District, and Local 
Party Fundraising Events, 70 FR 37649 (June 30, 2005) (``Party 
Committee Events Final Rules''). During the hearings on that 
rulemaking, a commenter observed that the disclaimer requirements are 
``understood'' and ``the community is complying with them,'' a view 
echoed in the current rulemaking. In the Explanation and Justification 
for the Party Committee Events Final Rules, the Commission indicated 
that it was not necessary ``to initiate a rulemaking to address the 
issues in Advisory Opinions 2003-03, 2003-05, and 2003-36 at this 
time.'' 70 FR at 37654. The Commission continues to stand by that 
determination.

D. 11 CFR 300.2(m)(1)--Types of Communications That are Solicitations

    Several commenters urged the Commission to specifically address 
communications that include reply envelopes, phone numbers, or Web 
pages dedicated to facilitating the making of contributions or 
donations. The Commission is therefore adding new 11 CFR 300.2(m)(1) to 
specify three types of ``solicitation'' that result from components of 
a communication that are intended to provide instructions about how to 
contribute or otherwise facilitate the making of a contribution. 
Specifically, paragraph (m)(1) provides that the following are 
solicitations: (1) A written communication that provides a method of 
making a contribution or donation, such as a reply card or envelope 
that permits a contributor or donor to indicate the amount of a 
contribution, regardless of the other text of the communication; (2) a 
communication that provides instructions on how or where to send 
contributions or donations, including providing a phone number 
specifically dedicated to facilitating the making of contributions or 
donations; and (3) a communication that identifies a Web address where 
the Web page displayed is specifically dedicated to facilitating the 
making of a contribution or donation, or automatically redirects the 
Internet user to such a page, or exclusively displays a link to such a 
page. See 11 CFR 300.2(m)(1)(i)-(iii).
    However, 11 CFR 300.2(m)(1)(ii) and (iii) expressly state that a 
communication does not become a solicitation simply by providing a 
mailing address, phone number, or Web address unless the address or 
number is specifically dedicated to facilitating the making of a 
contribution or donation. This clarification is intended to ensure that 
an organization's attempt to publicize its own contact information for 
non-fundraising purposes will not be treated as a solicitation.

E. Examples of Solicitations

    In order to provide Federal candidates and officeholders, and 
political committees and others operating under BCRA, with additional 
guidance on how the new standard will be applied, the Commission 
proposed, in the NPRM, to incorporate into either the final rule or the 
Explanation and Justification examples of communications that are 
solicitations, and examples of communications that are not. The NPRM 
sought comment on whether some or all of these examples should be 
included in the regulation itself or in the Explanation and 
Justification.
    The commenters generally agreed that all the examples set out in 
the NPRM should be included. Some commenters believed that the examples 
should be included in the Explanation and Justification while others 
expressed a preference for including the examples in the regulation 
itself. Because the Commission recognizes that Federal candidates and 
officeholders require clear guidance that can be readily applied in 
practice to their day-to-day activities, the Commission concludes that 
the examples are such an integral component of the definition of ``to 
solicit'' that they are best included in the regulation itself. The 
inclusion of the examples in the rule makes these examples more 
accessible to those seeking to comply with the Commission's rules.
    Similar versions of some of these examples were set forth in the 
NPRM. Several of these examples have been altered slightly to provide 
further clarity. Furthermore, given the unanimous agreement of the 
commenters that examples are helpful in applying the rule in real-life 
situations, the Commission is providing several new examples in 
addition to those included in the NPRM. The Commission emphasizes that 
the lists are integral to the application of the definition of ``to 
solicit'' in particular situations, but are not intended to be 
exhaustive.
    Revised 11 CFR 300.2(m)(2) lists several communications that are 
solicitations. Some of these examples represent explicit requests, such 
as ``Please give $100,000 to Group X.'' 11 CFR 300.2(m)(2)(i). Other 
examples are implicit, such as ``X is an effective State party 
organization; it needs to obtain as many $100,000 donations as 
possible,'' and ``Giving $100,000 to Group X would be a very smart 
idea.'' 11 CFR 300.2(m)(2)(iv) and (v). Several of the examples also 
demonstrate how a simple statement can be a solicitation in a 
particular context, such as the following: A candidate hands a 
potential donor a list of people who have contributed to a group and 
the amounts of their contributions. The candidate says, ``I see you are 
not on the list.'' 11 CFR 300.2(m)(2)(x).
    In contrast, 11 CFR 300.2(m)(3) includes examples of communications 
that are not, in and of themselves, ``solicitations'' under the revised 
definition. These statements are specific to the context in which they 
are made, and similar statements may result in solicitations in other 
situations. Some of these examples consist of statements indicating 
general support or electoral support, rather than a clear request for 
funds or something of value, such as a candidate's statement of ``thank 
you for your continuing support'' at a get-out-the-vote (GOTV) rally, 
or ``It is critical that we support the entire Democratic ticket in 
November'' at a ticket-wide rally. See 11 CFR 300.2(m)(3)(iv) and (v). 
Other examples refer to legislative achievements, such as the following 
statement by a Federal officeholder: ``Our Senator has done a great job 
for us this year. The policies she has vigorously promoted in the 
Senate have really helped the economy of the State.'' 11 CFR 
300.2(m)(3)(vi).

F. 11 CFR Part 114--Corporate and Labor Organization Activity

    Several regulations concerning corporate and labor organization 
activity in 11 CFR Part 114 use the terms ``to solicit'' and 
``solicitation'' without defining them. See, e.g., 11 CFR 114.5(g), 
114.6, 114.7, and 114.8; see also 11 CFR 104.7(b)(2). The NPRM sought 
comment on whether the Commission should continue to leave the terms 
``to solicit'' and ``solicitation'' undefined in these regulations, or 
whether these rules should include the same definition of ``to 
solicit'' as the regulations regarding non-Federal funds. Five 
commenters urged the Commission not to expand this rulemaking by 
promulgating definitions of ``to solicit'' and ``solicitation'' with 
respect to corporate and labor organization activity in 11 CFR Part 
114. Because, as three of these commenters observed, a rule defining 
``solicitation'' for 11 CFR Part 114 is not required by the Shays 
Appeal, the Commission has decided to leave the words ``solicitation'' 
and ``to solicit'' undefined in the regulations governing corporate and 
labor organization activity. The

[[Page 13932]]

Commission also notes that there are a number of advisory opinions that 
already explain what would or would not constitute a solicitation of 
contributions to a corporation's separate segregated fund (``SSF''). 
See, e.g., Advisory Opinions 2003-14, 2000-07, 1999-06, 1991-03, 1988-
02, 1983-38, 1982-65, and 1979-13.

G. 11 CFR 110.20(a)(6)--Foreign Nationals

    The Commission's regulations at 11 CFR 110.20(a)(6) prohibiting 
contributions, donations, expenditures, independent expenditures, and 
disbursements by foreign nationals incorporate the definition of ``to 
solicit'' in 11 CFR 300.2(m). See 11 CFR 110.20(a)(6). The NPRM 
proposed to continue to use the same definition of ``to solicit'' for 
both the regulations regarding non-Federal funds and the foreign 
national prohibitions, but also invited comment on whether there are 
reasons for providing two different, independent definitions of the 
term. All three of the commenters who addressed this issue urged the 
Commission to use the same definition for both regulations. The 
Commission agrees, and concludes that it is appropriate to continue to 
use the same definition of ``to solicit'' for both the regulations 
regarding non-Federal funds and the foreign national prohibitions.

II. 11 CFR 300.2(n)--Definition of ``To Direct''

    The Commission is revising the definition of ``to direct'' in 11 
CFR 300.2(n) to mean the following: `` to guide, directly or 
indirectly, a person who has expressed an intent to make a 
contribution, donation, transfer of funds, or otherwise provide 
anything of value, by identifying a candidate, political committee or 
organization, for the receipt of such funds, or things of value. The 
contribution, donation, transfer, or thing of value may be made or 
provided directly or through a conduit or intermediary.'' The 
Commission's final rule adopts the revised definition of ``to direct'' 
proposed in the NPRM, with the additional clarification that the 
guidance can be provided directly or indirectly. The inclusion of 
``directly or indirectly'' makes clear that the rule covers not only 
explicit guidance, but implicit guidance as well.
    The final rule at 11 CFR 300.2(n) also includes the statement that 
``merely providing information or guidance as to the applicability of a 
particular law or regulation'' is not direction. This statement is 
nearly identical to the statement included in the 2002 rule, with only 
technical changes intended to promote clarity in the meaning of the 
rule.
    As indicated above, although the Court of Appeals held that the 
Commission's definition of ``to direct'' was invalid because it 
effectively defined ``to direct'' as ``to ask'' and thus, like the 
definition of ``to solicit,'' limited ``to direct'' to explicit 
requests for funds, the court did not provide guidance on how ``to 
direct'' should be defined. However, the District Court did provide 
guidance. Specifically, the District Court observed that the term ``to 
direct'' has more than one meaning. It can mean ``[t]o guide (something 
or someone),'' as in to inform someone of where he or she can make a 
donation. The word can also mean ``[t]o instruct (someone) with 
authority,'' as in to order someone to make a donation.'' Shays 
District at 76 (quoting Black's Law Dictionary 471 (7th ed. 1999)).
    Defining ``to direct'' as ``to guide'' is consistent with BCRA's 
statutory language, which states in relevant part that the national 
committee of a political party may not ``direct to another person a 
contribution, donation, or transfer of funds or anything of value.'' 2 
U.S.C. 441i(a)(1) (emphasis added). See also 2 U.S.C. 441i(d) (``A 
national, State, district, or local committee of a political * * * 
party shall not solicit any funds * * * or direct any donations to [an 
entity] * * *.'') (emphasis added). The preposition ``to'' following 
the term ``to direct'' in these statutory provisions would appear to 
indicate that Congress intended the use of ``to direct'' in BCRA to 
mean ``to guide.'' \8\ The revised definition is also fully responsive 
to the holding in Shays District by ensuring that ``to solicit'' and 
``to direct'' cover distinct, though potentially overlapping, sets of 
communications.
---------------------------------------------------------------------------

    \8\ To define ``to direct,'' based on the second meaning of ``to 
direct'' identified by the District Court (i.e., ``to instruct with 
authority''), would effectively subsume the definition of ``to 
direct'' within the definition of ``to solicit,'' because 
``instructing with authority'' is a form of asking or requesting `` 
the terms the revised 11 CFR 300.2(m) uses to define ``to solicit.'' 
In other words, to the extent that ``instructing someone with 
authority'' to make a contribution or donation is reasonably 
understood to be asking or requesting that a contribution or 
donation be made, it is already encompassed by the amended 
definition of ``to solicit.'' Thus, defining ``to direct'' as to 
``instruct someone with authority'' would deprive the term of a 
meaningful role in the regulation by subsuming it under the meaning 
of ``to solicit.'' See Shays District at 77.
---------------------------------------------------------------------------

    Specifically, under the revised rule, ``to direct'' encompasses 
situations where a person has already expressed an intent to make a 
contribution or donation, but lacks the identity of an appropriate 
candidate, political committee or organization to which to make that 
contribution or donation. The act of direction consists of providing 
the contributor with the identity of an appropriate recipient for the 
contribution or donation. Examples of such direction include providing 
the names of such candidates, political committees, or organizations, 
as well as providing any other sufficiently detailed contact 
information such as a Web or mailing address, phone number, or the name 
or other contact information of a committee's treasurer, campaign 
manager, or finance director.
    Even though, as explained above, providing a mailing address, 
telephone number, or Web address is, in certain circumstances, in and 
of itself, a solicitation, the revised definition of ``to solicit'' 
does not cover many other situations in which a Federal candidate or 
officeholder or party official merely provides information about 
possible recipients to someone who has already expressed an intent to 
contribute or donate. For example, Donor approaches Candidate stating: 
``I have $10,000 and I want to contribute it to the party for the next 
election. Where would it be of most use?'' Candidate replies: ``The New 
York State Republican Party.'' Merely providing Donor with the name of 
an organization to which to donate funds is not a solicitation even 
under the revised and expanded definition of ``to solicit,'' but is 
direction under the revised definition of ``to direct.'' Thus, even 
though the revised definitions of ``to direct'' and ``to solicit'' 
overlap, in certain circumstances, the revised definition of ``to 
direct'' also covers a substantial range of actions that are not 
covered by the revised definition of ``to solicit,'' and therefore is 
not redundant.
    The NPRM invited comments on whether the proposed definition would 
be too broad or too narrow, whether it would reduce the opportunities 
for circumvention of the Act or for actual or apparent corruption, and 
whether it would affect the exercise of political activity. The 
majority of those who commented on this issue supported the 
Commission's proposed revision to the rule and indicated that it would 
reduce the opportunities for circumvention of BCRA's soft money 
restrictions, and would provide sufficient guidance to candidates, 
officeholders, and political committees.
    Some commenters asserted that because the proposed rule would apply 
only to persons who had already ``expressed an intent'' to make a 
contribution, donation, transfer of funds, or otherwise provide 
anything of value, the proposed rule would be too

[[Page 13933]]

narrow and could lead to circumvention of the Act. These commenters 
suggested modifying the rule by removing the phrase ``who has expressed 
an intent.''
    The Commission disagrees with these commenters. If the phrase ``who 
has expressed an intent'' were removed, the definition of ``to direct'' 
would include merely providing the identity of an appropriate 
recipient, without any attempt to motivate another person to contribute 
or donate funds. Thus, this rule would appear to be substantially 
broader than the revised definition of ``to solicit'' at 11 CFR 
300.2(m), and would subsume that definition.
    The NPRM also asked whether it was even necessary to provide a 
regulatory definition for the term ``to direct'' for the purposes of 11 
CFR part 300, as long as it was made clear in the Explanation and 
Justification that the term means ``to guide.'' This would have allowed 
the definition to develop through the advisory opinion and enforcement 
processes. Some commenters objected to this approach, arguing that 
adopting a regulatory definition adds clarity to the law and provides 
guidance to Federal candidates and officeholders and political party 
officers. Taking this into consideration, the Commission agrees that it 
is preferable to provide guidance, and therefore is adopting the 
revised definition.
    In the NPRM, the Commission noted that the words ``directed'' and 
``direction'' appear in the Commission's earmarking rules regarding 
contributions directed through a conduit or intermediary under 2 U.S.C. 
441a(a)(8). See 11 CFR 110.6(a). Although these terms are not defined 
in the Act or in Commission regulations, the Explanation and 
Justification for 11 CFR 110.6 states that in determining whether a 
person has direction or control, ``the Commission has considered such 
factors as whether the conduit [or intermediary] controlled the amount 
and timing of the contribution, and whether the conduit selected the 
intended recipient.'' Final Rules for Affiliated Committees, Transfers, 
Prohibited Contributions, Annual Contribution Limitations and Earmarked 
Contributions, 54 FR 34098, 34108 (August 17, 1989). Thus, the word 
``direction'' in the earmarking rules essentially means ``instructing 
with authority.'' The Commission sought comment on whether this was an 
appropriate definition of the term ``to direct'' in the context of 11 
CFR part 300.
    Some commenters believed that this interpretation would be 
inconsistent with the purposes and intent of BCRA, and would improperly 
narrow BCRA's otherwise broad prohibition on Federal candidates, 
officeholders and political party committees' participation in the 
raising or spending of non-Federal funds. The Commission notes that, as 
discussed above, under this interpretation the term ``to direct'' would 
appear to be subsumed by the revised definition of ``to solicit.'' Any 
activity that could be construed as ``directing with authority'' could 
also be categorized as ``to ask, request or recommend'' that another 
person make a contribution or donation. Therefore, the Commission 
declines to adopt a definition of ``to direct'' reflecting this 
interpretation.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory 
Flexibility Act]
    The Commission certifies that the attached final rules do not have 
a significant economic impact on a substantial number of small 
entities. The basis for this certification is that the organizations 
affected by these rules are the national, State, district, and local 
party committees of the two major political parties and other political 
committees, which are not small entities under 5 U.S.C. 601 because 
they are not small businesses, small organizations, or small 
governmental jurisdictions. National, State, district, and local party 
committees and any other political committees affected by these 
proposed rules are not-for-profit committees that do not meet the 
definition of ``small organization,'' which requires that the 
enterprise be independently owned and operated and not dominant in its 
field. State political party committees are not independently owned and 
operated because they are not financed and controlled by a small 
identifiable group of individuals, and they are affiliated with the 
larger national political party organizations. In addition, the 
national and State political party committees representing the 
Democratic and Republican parties have a major controlling influence 
within the political arena of their State and are thus dominant in 
their field. District and local party committees are generally 
considered affiliated with the State committees and need not be 
considered separately.
    Most other political committees affected by these rules are not-
for-profit committees that do not meet the definition of ``small 
organization.'' Most political committees are not independently owned 
and operated because they are not financed by a small identifiable 
group of individuals. Most political committees rely on contributions 
from a large number of individuals to fund the committees' operations 
and activities.
    To the extent that any State party committees representing minor 
political parties or any other political committees might be considered 
``small organizations,'' the number affected by these rules is not 
substantial.
    Finally, candidates and other individuals operating under these 
rules are not small entities.

List of Subjects in 11 CFR Part 300

    Campaign funds, Nonprofit organizations, Political candidates, 
Political committees and parties, Reporting and recordkeeping 
requirements.

0
For the reasons set out in the preamble, the Federal Election 
Commission is amending Subchapter C of Chapter I of Title 11 of the 
Code of Federal Regulations as follows:

PART 300--NON-FEDERAL FUNDS

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 2 U.S.C. 434(e), 438(a)(8), 441a(a), 441i, 453.


0
2. Section 300.2 is amended by revising paragraphs (m) and (n) to read 
as follows:


Sec.  300.2  Definitions.

* * * * *
    (m) To solicit. For the purposes of part 300, to solicit means to 
ask, request, or recommend, explicitly or implicitly, that another 
person make a contribution, donation, transfer of funds, or otherwise 
provide anything of value. A solicitation is an oral or written 
communication that, construed as reasonably understood in the context 
in which it is made, contains a clear message asking, requesting, or 
recommending that another person make a contribution, donation, 
transfer of funds, or otherwise provide anything of value. A 
solicitation may be made directly or indirectly. The context includes 
the conduct of persons involved in the communication. A solicitation 
does not include mere statements of political support or mere guidance 
as to the applicability of a particular law or regulation.
    (1) The following types of communications constitute solicitations:
    (i) A communication that provides a method of making a contribution 
or donation, regardless of the communication. This includes, but is not 
limited to, providing a separate card, envelope, or reply device that 
contains an address to which funds may be sent and allows contributors 
or donors to indicate the dollar amount of

[[Page 13934]]

their contribution or donation to the candidate, political committee, 
or other organization.
    (ii) A communication that provides instructions on how or where to 
send contributions or donations, including providing a phone number 
specifically dedicated to facilitating the making of contributions or 
donations. However, a communication does not, in and of itself, satisfy 
the definition of ``to solicit'' merely because it includes a mailing 
address or phone number that is not specifically dedicated to 
facilitating the making of contributions or donations.
    (iii) A communication that identifies a Web address where the Web 
page displayed is specifically dedicated to facilitating the making of 
a contribution or donation, or automatically redirects the Internet 
user to such a page, or exclusively displays a link to such a page. 
However, a communication does not, in and of itself, satisfy the 
definition of ``to solicit'' merely because it includes the address of 
a Web page that is not specifically dedicated to facilitating the 
making of a contribution or donation.
    (2) The following statements constitute solicitations:
    (i) ``Please give $100,000 to Group X.''
    (ii) ``It is important for our State party to receive at least 
$100,000 from each of you in this election.''
    (iii) ``Group X has always helped me financially in my elections. 
Keep them in mind this fall.''
    (iv) ``X is an effective State party organization; it needs to 
obtain as many $100,000 donations as possible.''
    (v) ``Giving $100,000 to Group X would be a very smart idea.''
    (vi) ``Send all contributions to the following address * * *.''
    (vii) ``I am not permitted to ask for contributions, but 
unsolicited contributions will be accepted at the following address * * 
*.''
    (viii) ``Group X is having a fundraiser this week; you should go.''
    (ix) ``You have reached the limit of what you may contribute 
directly to my campaign, but you can further help my campaign by 
assisting the State party.''
    (x) A candidate hands a potential donor a list of people who have 
contributed to a group and the amounts of their contributions. The 
candidate says, ``I see you are not on the list.''
    (xi) ``I will not forget those who contribute at this crucial 
stage.''
    (xii) ``The candidate will be very pleased if we can count on you 
for $10,000.''
    (xiii) ``Your contribution to this campaign would mean a great deal 
to the entire party and to me personally.''
    (xiv) Candidate says to potential donor: ``The money you will help 
us raise will allow us to communicate our message to the voters through 
Labor Day.''
    (xv) ``I appreciate all you've done in the past for our party in 
this State. Looking ahead, we face some tough elections. I'd be very 
happy if you could maintain the same level of financial support for our 
State party this year.''
    (xvi) The head of Group X solicits a contribution from a potential 
donor in the presence of a candidate. The donor asks the candidate if 
the contribution to Group X would be a good idea and would help the 
candidate's campaign. The candidate nods affirmatively.
    (3) The following statements do not constitute solicitations:
    (i) During a policy speech, the candidate says: ``Thank you for 
your support of the Democratic Party.''
    (ii) At a ticket-wide rally, the candidate says: ``Thank you for 
your support of my campaign.''
    (iii) At a Labor Day rally, the candidate says: ``Thank you for 
your past financial support of the Republican Party.''
    (iv) At a GOTV rally, the candidate says: ``Thank you for your 
continuing support.''
    (v) At a ticket-wide rally, the candidate says: ``It is critical 
that we support the entire Democratic ticket in November.''
    (vi) A Federal officeholder says: ``Our Senator has done a great 
job for us this year. The policies she has vigorously promoted in the 
Senate have really helped the economy of the State.''
    (vii) A candidate says: ``Thanks to your contributions we have been 
able to support our President, Senator and Representative during the 
past election cycle.''
    (n) To direct. For the purposes of part 300, to direct means to 
guide, directly or indirectly, a person who has expressed an intent to 
make a contribution, donation, transfer of funds, or otherwise provide 
anything of value, by identifying a candidate, political committee or 
organization, for the receipt of such funds, or things of value. The 
contribution, donation, transfer, or thing of value may be made or 
provided directly or through a conduit or intermediary. Direction does 
not include merely providing information or guidance as to the 
applicability of a particular law or regulation.
* * * * *

    Dated: March 13, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
[FR Doc. 06-2623 Filed 3-17-06; 8:45 am]
BILLING CODE 6715-01-P